FLSA2018-20 — Compensability of time spent attending employer-sponsored benefits fairs

U.S. Department of Labor Wage and Hour Division
Washington, DC 20210

1

FLSA2018-20
August 28, 2018
Dear Name*:
This letter responds to your request for an opinion concerning whether the Fair Labor Standards
Act (FLSA) requires compensation for the time an employee spends voluntarily participating in
certain wellness activities, biometric screenings, and benefits fairs. This opinion is based
exclusively on the facts you have presented. You have represented that you do not seek this
opinion for any party that the Wage and Hour Division (WHD) is currently investigating, or for
use in any litigation that commenced prior to your request.
BACKGROUND
Your letter states that an employer allows its employees to voluntarily participate in “biometric
screening” both during and outside of regular work hours. The screening tests, among other
things, an employee’s cholesterol levels, blood pressure, and nicotine usage. An employee’s
participation in the screening may decrease his or her health insurance deductibles. The
employer does not require the screening, and the screening is not related to the employee’s job.
It is purely the employee’s choice whether to participate.
An employee may also participate in the following “wellness activities” to potentially decrease
his or her monthly insurance premiums:
(1) attending an in-person health education class and lecture (e.g., nutrition or
diabetes management); (2) taking an employer-facilitated gym class or using the
employer-provided gym; (3) participating in telephonic health coaching and
online health education classes through an outside vendor facilitated by the
employer; (4) participating in Weight Watchers; and (5) voluntarily engaging in a
fitness activity (e.g., going to personal gym, exercising outdoors, participating in a
Fitbit challenge).
Similar to the biometric screening, these wellness activities are not mandatory and do not
directly relate to the employee’s job.
Finally, an employee may also choose to attend a benefits fair to learn about topics such as
financial planning, employer-provided benefits, or college attendance opportunities. These fairs
are not part of new employee orientation, are open to all employees, are not related to the
employees’ job duties, and are entirely optional.
You have represented that the employer receives no direct financial benefit as a result of
employee participation in any of the above-described activities.

2

GENERAL LEGAL PRINCIPLES
The FLSA, as a general matter, requires employers to compensate employees for their work.
The FLSA defines “employ” as including “to suffer or permit to work,” 29 U.S.C. § 203(g), but
does not explicitly define what constitutes compensable work. The U.S. Supreme Court has
determined that the compensability of an employee’s time depends on “[w]hether [it] is spent
predominantly for the employer’s benefit or for the employee’s.” Armour & Co. v. Wantock,
323 U.S. 126, 133 (1944); see also, e.g., Reich v. S. New England Telecomms. Corp., 121 F.3d
58, 64 (2d Cir. 1997) (time is compensable when employees “perform duties predominantly for
the benefit of the employer”).
Regulations separately provide that an employee is not entitled to compensation for “off duty”
time—that is, “[p]eriods during which an employee is completely relieved from duty and which
are long enough to enable him to use the time effectively for his own purposes.” 29 C.F.R.
§ 785.16.
OPINION
Based on the facts you have provided, an employee’s voluntary participation in biometric
screenings, wellness activities, and benefits fairs as described predominantly benefits the
employee. The activities provide direct financial benefit to only the employee, and they also
help the employee make more informed decisions about matters unrelated to his or her job.
Participation is wholly optional for the employee; the employer never requires it. The employer
likewise does not require the employee to perform any job-related duties while he or she
participates in the activities. Because the activities described in your letter predominantly benefit
the employee, they do not constitute compensable worktime under the FLSA. See Armour, 323
U.S. at 133; cf. Watterson v. Garfield Beach CVS, 120 F.Supp.3d 1003, 1006-09 (N.D. Cal.
2015) (holding that an employee’s time spent voluntarily participating in “annual health
screenings” and “wellness reviews” was not compensable and did not constitute “hours worked”
or “time the employee [was] suffered or permitted to work”).
Additionally, the activities you have described also constitute noncompensable “off duty” time
under 29 C.F.R. § 785.16. When the employer allows an employee to voluntarily participate in
the above-described activities, the employer is relieving the employee of all job duties. You
have not indicated that the employer restricts the amount of time an employee may participate in
such activities; we assume that the time allowed is long enough for the employee to use it
effectively for his or her own purposes. Under these circumstances, the time spent participating
in such activities is noncompensable “off duty” time under 29 C.F.R. § 785.16.

3

In sum, the FLSA does not require compensation for the time employees choose to spend
engaged in the activities described in your letter.
1
Our conclusion is the same regardless of
whether the activities occur on-site or during regular working hours.
We trust that this letter is responsive to your inquiry.
Sincerely,

Bryan Jarrett
Acting Administrator
*Note: The actual name(s) was removed to protect privacy in accordance with 5 U.S.C. §
552(b)(7).

1
It is important to note, however, that work breaks up to 20 minutes in length are ordinarily compensable, regardless
of how an employee chooses to spend his or her time during the break. 29 C.F.R. § 785.18; see also WHD Opinion
Letter, 1995 WL 1032460 (Jan. 25, 1995) (“[I]t is immaterial with respect to compensability of such breaks whether
the employee drinks coffee, smokes, goes to the restroom, etc.”). Thus, for example, if the employer provides all
employees with a 20-minute break each day, the employer must still compensate an employee for that break if he or
she chooses to spend it participating in the wellness activities, biometric screenings, and benefits fairs described in
your letter.